Mr Mylott was employed by Tameside Hospital NHS Foundation Trust. He went off sick with stress following alleged poor management and a meeting during which it was alleged that his former line manager, Mr Fogarty, and another manager, Ms Holroyd, had acted in a rude and intimidatory manner towards him.

The trust implemented its attendance management procedure in March 2006. Mr Mylott stated that, in order to return to work, he needed to have the issues with Mr Fogarty resolved. The occupational health department recommended an independent review. Instead, Mr Mylott was advised to make a complaint under the trust’s bullying and harassment procedure. He did so, and the trust appointed Mr Neve to carry out an investigation, which Ms Holroyd helped to organise. Mr Neve interviewed Mr Fogarty but not Ms Holroyd, and rejected Mr Mylott’s complaint, except in one limited respect. Mr Mylott brought a grievance arguing that Ms Holroyd (and others) should have been interviewed.

The trust gave Mr Mylott notice of termination of employment under the attendance management procedure. The subject of ill-health early retirement came up and Ms Holroyd told Mr Mylott that he would have to take that up with occupational health. Mr Mylott appealed against his dismissal. His grievance and his appeal against dismissal were both dismissed. Mr Mylott claimed unfair dismissal and disability discrimination.

DECISION

It was accepted that Mr Mylott had a disability. The medical evidence was that Mr Mylott had a history of drug use and mental health problems. The tribunal upheld Mr Mylott’s claims of unfair dismissal, disability-related discrimination and failure to make reasonable adjustments.

The tribunal found that the dismissal was unfair because:

Ms Holroyd should not have proceeded to dismissal until the grievance procedure had run its course;

the trust should have followed the advice of occupational health to undertake an independent review; and

the trust failed to consider ill-health early retirement.

The tribunal held that the trust had failed to make reasonable adjustments. It should have initiated an independent management review rather than requiring Mr Mylott to make a complaint under the bullying and harassment procedure, while it failed to take account of the occupational health advice to revisit the question of a return to work after the independent review. It also failed to look into the possibility of ill-health early retirement. The tribunal held that Mr Mylott’s dismissal was disability-related discrimination.

The Trust appealed to the EAT, which upheld the finding of unfair dismissal but allowed the appeal in respect of disability-related discrimination and failure to make reasonable adjustments in relation only to the ill-health early retirement.

The EAT held that the tribunal was entitled to find that the adjustments suggested might have mitigated Mr Mylott’s anxiety and allowed him to return to work. However, the EAT said that the duty to make reasonable adjustments does not extend to enabling a disabled employee who is no longer able to do the work to leave employment on favourable terms. An adjustment involves steps that make it possible for the employee to remain in employment.

The EAT allowed the appeal on disability-related discrimination as there was no evidence that the trust would have treated an employee, who was not disabled, with the same absence record and employment history as Mr Mylott any differently.

The EAT held that the tribunal was entitled not to award compensation for loss of earnings as Mr Mylott had not brought expert evidence about the effect of the trust’s breaches on his mental health. His inability to work could have been the result of his underlying health issues. An injury to feelings award of £16,000 was open to the tribunal on the evidence, but the facts did not justify a finding of malice on the part of Ms Holroyd. The award of aggravated damages was not justified.

IMPLICATIONS

This case will be welcomed by employers as it confirms that the duty to make reasonable adjustments does not extend to enabling a disabled employee to leave employment on favourable terms. Therefore, there is no duty on the employer of a disabled employee to take steps to facilitate an application for ill-health early retirement.

It should be noted that the disability-related discrimination claim was decided under the pre-Equality Act 2010 Malcolm test. An employer that dismisses an employee because of absence arising from a disability will now have to show that the dismissal was a proportionate means of achieving a legitimate aim. In the circumstances of the present case, that might be difficult as the tribunal was critical of the failure to follow occupational health advice.

Sandra Wallace, head of equality and diversity and partner at DLA Piper